Pickett v. Hospital Service District of West Feliciana Parish et al

Filing 26

RULING granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge Shelly D. Dick on 03/22/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUANITA PICKETT

CIVIL ACTION

VERSUS

16-219-SDD-EWD

THE HOSPITAL SERVICE DISTRICT OF
WEST FELICIANA PARISH, LOUISIANA
AND THE BOARD OF COMMISSIONERS
OF THEHOSPITAL SERVICE DISTRICT
OF WEST FELICIANA
RULING
This matter is before the Court on the Motion to Dismiss for Failure to State a
Claim1 filed by Defendants, The Hospital Service District of West Feliciana Parish,
Louisiana and the Board of Commissioners of the Hospital Service District of West
Feliciana (“Defendants”). Plaintiff, Juanita Pickett (“Plaintiff”), filed an Opposition2 to
which Defendants filed a Reply,3 and Plaintiff filed a Sur-Reply.4

For the following

reasons, the motion will be granted in part and denied in part.
I.

FACTUAL BACKGROUND5
Plaintiff, an African-American, was hired as a PRN and registered Nurse by the

Hospital Service of West Feliciana Parish, Louisiana (“Hospital”) on May 4, 2012. Before
working for the Hospital, Plaintiff worked as a staff nurse for over 15 years. Plaintiff claims
that Caucasian employees, who were allegedly less qualified than her, were given
promotions.

Plaintiff further alleges that she was repeatedly denied promotional

1

Rec. Doc. 13.
Rec. Doc. 20.
3
Rec. Doc. 21.
4
Rec. Doc. 24.
5
The Court bases the factual background on Rec. Doc. 11.
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2

Page 1 of 16

opportunities and “paid in a disparate fashion” because she is African-American.6 Around
the time Plaintiff was hired, the Hospital also hired a female Caucasian nurse who was
allegedly paid $30 an hour on account of her race, while Plaintiff was only paid $27 an
hour with no shift differentials. Plaintiff further claims that, at the time of her termination,
she was still being paid less by the Hospital than a Caucasian nurse at $29 an hour.
Plaintiff also claims that she was subjected to racial harassment consisting of, but
not limited to: derogatory statements regarding African-Americans; comments that
African-Americans “need to know their place;” placing Plaintiff as the head of
housekeeping “because she can relate”7 as all the employees in housekeeping are
African-American; and Caucasian nurses refusing to treat African-American patients.
Plaintiff also contends that Defendants did not have a policy regarding harassment,
discrimination, and retaliation while she was an employee.
Around December 9, 2013, Plaintiff expressed her interest in the positions of
Compliance Officer to the CEO of the Hospital, Lee Chastant (“Chastant”). Chastant
assigned one of the open positions to a Caucasian female with a respiratory therapy
background and allegedly less education and credentials than Plaintiff, who Plaintiff
further claims was unqualified for the position of interim or permanent Compliance Officer.
Another nurse was appointed to the positions of Utilization Review/Infection Control and
Employee Nurse who allegedly had less experience than Plaintiff. Plaintiff protested the
denial of her appointment to the position arguing the decision was racially motivated.

6

Id. at p. 2.
Id. at p. 3.
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On April 8, 2014, the nursing department had a meeting wherein Chastant stated
that five positions would be posted for all interested employees per Hospital policy.
Plaintiff emailed Defendants on May 28, 2014 detailing specific instances during her
employment with the Hospital that she alleged constituted racism: “failure to post
positions in preference of whites, appointment of unqualified whites, and unequal pay to
blacks.”8 Chastant allegedly responded to Plaintiff’s email denying all of the above
allegations.
Plaintiff wrote a letter to Chastant and Neta Leake (“Leake”), Human Resources
Manager, on June 4, 2014, alleging that she had not been promoted to positions for which
she was qualified, and she was underpaid because she was an African-American female.
Leake responded to Plaintiff on June 23, 2014 stating that she was setting up a meeting
with Chastant and Kevin Mulligan, a Human Resources Consultant. On July 7, 2014,
Plaintiff meet with Chastant and Mulligan. Plaintiff alleges that, during this meeting,
Chastant admitted that he had not posted the positions and “that he knew he should
have.”9 During the meeting, Plaintiff asked for information regarding employee salaries
for the purpose of determining if employees were paid differently on the basis of race,
information on how interim appointments were made, and she again protested her alleged
denial of promotions because she is African-American.
On August 12, 2014, a member of the Board met with Judy Jones (“Jones”), a
nurse, and allegedly told Jones that promotions were not given to Plaintiff and others

8

Id. at p. 4.
Id. at p. 5.
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“because of race, and to file a written complaint with the Board, and make sure that press
was there for the Board meeting.”10
Plaintiff and other African-American nurses presented their complaints of racism
to the Board on August 21, 2014. At this meeting, Plaintiff, along with other AfricanAmerican nurses, provided each member of the Board with emails and correspondence
regarding their complaints of racism, “to no avail.”11 Plaintiff alleges that, on September
17, 2014, she filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Louisiana Commission on Human Rights (“LCHR”).
Plaintiff alleges that, after the board meeting, Plaintiff and her African-American
co-workers were “wrongfully accused of committing HIPPA violations, subjected to
licensure complaints with their licensing boards, and falsely accused of misconduct by
defendants in retaliation/reprisal for Petitioner’s protected activities.”12 Plaintiff alleges
that several Health Insurance and Portability Accountability Act (“HIPPA”) and Emergency
Medical Treatment and Active Labor Act (“EMTALA”) violations made by Caucasian
employees were reported to Human Resources and Chastant, but no action was taken
against the Caucasian employees.
On December 15, 2014, Dr. Anthony Shields, Chief Medical Officer, called Plaintiff
and told her she would be suspended without pay for alleged HIPPA violations and that
a letter would be emailed from Chastant regarding her suspension. Dr. Shields also

10

Id.
Id.
12
Id. at pp. 5-6.
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allegedly told Plaintiff not to report to work on December 16, 2014, but “he couldn’t explain
exactly why [Plaintiff] was being suspended.”13
A total of five nurses were allegedly suspended for HIPPA violations. Plaintiff
alleges that the Caucasian nurses who were suspended with pay were given the
opportunity to resign but allowed to return to work; however, the two African-American
nurses were suspended without pay and “were fired and not given any due process, they
were never given the chance to meet and discuss the false allegations.”14 On December
16, 2014, Plaintiff informed an employee of the Hospital that she wanted her attorney
present when she was questioned by the Hospital’s attorney; this request was denied.
On December 26, 2014, Plaintiff again alleged racial discrimination and reported two
HIPPA violations that were “summarily dismissed by defendants,” and the Defendants did
not discipline these Caucasian employees.15
Plaintiff alleges that Defendants backdated her letter of termination, with no
explanation, on January 9, 2015. Plaintiff was reported by Defendants to the Board of
Nursing regarding the alleged HIPPA violations, placing Plaintiff’s nursing license in
danger. The Board of Nursing closed the investigation of the alleged HIPPA violations
and found that Plaintiff had no HIPPA violations.
Plaintiff filed this Complaint16 on April 8, 2016 alleging that Defendants violated
Title VII of the Civil Rights Act of 196417 and Louisiana Revised Statute 23:301, et seq.

13

Id. at p. 6.
Id. at p. 7.
15
Id.
16
Rec. Doc. 1.
17
42 U.S.C. § 2000(e).
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On May 26, 2016, Plaintiff filed an Amended Complaint18 to include her Notice of Right to
Sue Letter from the Department of Justice. Defendants have filed a Motion to Dismiss
Plaintiff’s claims.
II.

LAW AND ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”19 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”20 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”21 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”22 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”23 However,

18

Rec. Doc. 11.
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
20
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
21
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
22
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
23
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
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19

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”24 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”25 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”26 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”27
B. Motion to Dismiss Under Rule 12(b)(1)
“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as
a motion to dismiss under Rule 12(b)(6).”28 Pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a complaint is subject to dismissal if a plaintiff fails “to state a
claim upon which relief can be granted.” “To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim relief that is plausible on its face.’”29
However, when ruling on a Rule 12(b)(1) motion, “the court is permitted to look at
evidence in the record beyond simply those facts alleged in the complaint and its proper
attachments.”30 Ultimately, a motion to dismiss for lack of subject matter jurisdiction

24

Twombly, 550 U.S. at 570.
Iqbal, 556 U.S. at 678.
26
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
27
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
28
Hall v. Louisiana, et. Al.., 974 F.Supp.2d 978, 985 (M.D. La. Sep. 30, 2013)(citing Benton v. U.S.., 960
F.2d 19, 21 (5th Cir. 1998)).
29
Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
30
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
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25

should be granted only if it appears certain that the plaintiff cannot prove any set of facts
in support of his claim which would entitle plaintiff to relief.”31
C. Prescription
Defendants argue that “all of the alleged discrimination Plaintiff asserts in her
EEOC Charge occurred […] outside of the 300-day statutory period...”32 “When an
employee discrimination claim is brought in a deferral state, an aggrieved employee must
file a claim with the designated state agency of the EEOC within 300 days of the alleged
unlawful employment action.”33 Plaintiff’s EEOC “Charge of Discrimination” states that the
earliest and latest date of discrimination was December 12, 2013.34 If the claim is filed
within the 300 days, it is not prescribed.35
The Fifth Circuit in Conner v. Louisiana Department of Health and Hospitals held:
This court has recognized that an intake questionnaire that
informs the EEOC of the identity of the parties and describes
the alleged discriminatory conduct in enough detail to enable
the EEOC to issue an official notice of charge to the
respondent is sufficient to set [ ] the administrative machinery
in motion.36
It is undisputed that Plaintiff submitted an intake questionnaire to the EEOC.37

31

Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of Miss., Inc. v. City of Madison Miss., 143 F.3d
1006, 1010 (5th Cir. 1998)).
32
Rec. Doc. 13-1, p. 5.
33
Kirkland v. Big Lots Store, Inc., 547 Fed.Appx. 570, 572-73 (5th Cir. 2013).(See Nat’l R. R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
34
Rec. Doc. 20-1, p. 25.
35
See Kirkland, 547 Fed.Appx. at 572-73.
36
247 Fed. Appx. 480, 481 (5th Cir. 2007)(quoting Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78
(5th Cir. 1982); see also Edelman v. Lynchburg College, 535 U.S. 106, 118-119, 122 S.Ct. 1145, 152 L.Ed.
188 (2002)(internal citations omitted).
37
See Rec. Docs. 13-1, 20.
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The issue before the Court is the date Plaintiff submitted her EEOC intake questionnaire.
Plaintiff argues that the intake questionnaire was submitted on September 17, 2014.38
The Fifth Circuit in Kirkland v. Big Lots Store Inc. examined the question before
the Court – what is the date that an EEOC intake questionnaire is deemed submitted for
purposes of calculating the 300 day prescriptive period in Louisiana.39 The plaintiff in
Kirkland, like the Plaintiff in the present case,40 argued that the EEOC intake
questionnaire is submitted on the day it was mailed. In response to this argument, the
court stated:
Mailing is not filing for purposes of Title VII. A claim is
considered filed when it is received by the EEOC or the state
agency responsible for the administration of complaints of
employment discrimination. Accordingly, Kirkland’s claim was
not filed until it was received by the LCHR [Louisiana
Commission on Human Rights] on May 6, 2010.41
Based upon the holding of the Fifth Circuit in Kirkland, Plaintiff’s EEOC intake
questionnaire will be deemed submitted on the date it was received by LCHR.42
Examining the EEOC documents provided,43 it is clear that the EEOC provided a
letter dated October 8, 2014 wherein the EEOC “acknowledge[d] receipt of the above-

38

Rec. Doc. 20, p. 1.
547 Fed.Appx. at 572-73.
40
Rec. Doc. 20, p. 1.
41
Kirkland, 547 Fed.Appx. at 573.(quoting Taylor v. Gen. Tel. Co. of Sw., 759 F.2d 437, 440 (5th Cir.
1985)(29 C.F.R. § 1601.13(a)(4)(2)(a)(A)(2010)).(emphasis original).
42
The Court rejects Plaintiff’s argument that the submission date is September 17, 2014 based upon the
Supreme Court’s decision in Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d
188 (2002). See Rec. Doc. 17, pp. 4-5. Applying Edelman to the present case, it is clear that the submission
date relates back to when the Plaintiff’s EEOC intake questionnaire was “filed” with the EEOC. However,
the Fifth Circuit in Kirkland clearly stated that an EEOC intake questionnaire is deemed “filed” in Louisiana
when it is received by the LCHR. Accordingly, the Court deems Plaintiff’s intake questionnaire “filed” on
the date it was received by the LCHR.
43
Wilson v. Lockheed Martin Corp., 03-2276, 2003 WL 22384933, at * 2 (E.D. La. 10/15/03). “The Court
may take judicial notice of EEOC documents as a matter of public record when deciding a Rule 12(b)(6)
motion.” See Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). “Any reference to EEOC documents,
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39

numbered charge of employment discrimination.”44 As this is the date that the EEOC is
acknowledging receipt of Plaintiff’s EEOC complaint, the Court finds that the EEOC
received the Plaintiff’s intake questionnaire on October 8, 2014. Therefore, as long as
the Plaintiff’s alleged discriminatory conduct occurred on or after December 12, 2013, her
claim is not time barred.

Per her EEOC Charge, Plaintiff’s first and last date of

discrimination occurred on December 12, 2013.45

Accordingly, Plaintiff’s Title VII

discrimination claim is not time barred as she filed her EEOC complaint within the 300
day prescriptive period required in Louisiana.46
For the above reasons, Defendants’ Motion to Dismiss Plaintiff’s Title VII
discrimination claim as time barred is DENIED.
D. Scope of Plaintiff’s EEOC Charge
Defendants next argue that Plaintiff’s retaliation and harassment claims should be
dismissed because “she failed to exhaust all of her administrative remedies and did not
include these claims in the scope of her EEOC Charge.”47 In the EEOC Charge of
Discrimination (“Charge”) provided by Plaintiff, the box for retaliation is empty.48 In the
Charge, the Plaintiff has clearly marked “discrimination based on: race, color, and sex.”49
Plaintiff argues she checked the box marked continuing action on her Charge, and her
retaliation and harassment claims stem from the discrimination alleged in the Charge.50

therefore, does not convert the 12(b)(6) motion into a motion for summary judgment.” See Chadwick v.
Layrisson, 98-3518, 1999 WL 717628, *2 (E.D. La. 9/13/99).
44
Rec. Doc. 20-1, p. 17.
45
See Rec. Doc. 20-1, p. 25.
46
The Court need not examine Plaintiff’s continuing violation or Lilly Ledbetter arguments as her
discrimination claim is not time barred.
47
Rec. Doc. 13-1, p. 9.
48
See Rec. Doc. 20-1, p. 25.
49
Id.
50
See Rec. Doc. 24, See Rec. Doc. 20-1, p. 25.
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In her Sur-Reply, Plaintiff contends “it can reasonably be expected that the Plaintiff’s claim
of harassment and retaliation would grow out of her Charge.”51 Plaintiff relies on Walls v.
Mississippi State Department of Public Welfare and Pacheco v. Mineta in support of this
argument.52
Turning first to the question of retaliation, the Court will apply the standard
articulated by the Fifth Circuit in Simmons-Myers v. Caesars Entertainment Corporation.53
The Court in Simmons-Myers applied the Gupta exception, “which does not require
exhaustion for a retaliation claim growing out of an earlier EEOC charge.”54 Plaintiff
argues that Defendants’ retaliatory conduct grew out of her discrimination charge filed
with the EEOC.55 Ordinarily, Plaintiff would be required to “file a supplemental claim, or
at the very least, amend her original EEOC charge”56 for her retaliation claim to be
properly before the Court. If, however, the alleged retaliatory conduct is not “the same
inciting event,”57 but retaliation growing out of an earlier charge, the Court retains ancillary
jurisdiction over the retaliation charge.58 Here Plaintiff filed her Charge of discrimination
on October 8, 2014,59 and was subsequently allegedly retaliated against, leading to her
termination on January 9, 2015.60

Because the timeline illustrates that the alleged

retaliatory conduct grew out of her EEOC charge, the Court will apply the Gupta exception
to Plaintiff’s retaliation claim and maintain ancillary jurisdiction over Plaintiff’s retaliation

51

Rec. Doc. 24, p. 3.
Id., p. 3, citing Walls, 730 F.2d 306, 318 (5th Cir. 1984); Pacheco, 448 F.3d 783, 792 (5th Cir. 2006).
53
515 Fed.Appx. 269 (5th Cir. 2013).
54
Id. at 272 (quoting Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981)).
55
Rec. Doc. 24, p. 3.
56
Simmons-Myers, 515 Fed.Appx. at 273.
57
Id. at 274.
58
See Gupta, 654 F.2d at 414.
59
Rec. Doc. 20-1, p. 17.
60
Rec. Doc. 11, p. 7.
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52

claim. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s retaliation claim pursuant to
FRCP 12(b)(1) is DENIED.
Lastly, Defendants move for dismissal for Plaintiff’s failure to exhaust her
administrative remedies on her harassment claim. While Plaintiff’s Complaint contains
allegations of retaliation, harassment, and discrimination,61 the charge contains only a
claim of discrimination.62

The court in Pacheco, relying on Fellows v. Universal

Restaurants, Inc. and Fine v. GAF Chemical Corporation, stated: “this court interprets
what is properly embraced in review of a Title–VII claim somewhat broadly, not solely by
the scope of the administrative charge itself, but by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.”63
Accordingly, the Court may “look slightly beyond [the charge’s] four corners, to its
substance rather than its label.”64
The language contained in the “Particulars” portion of Plaintiff’s charge clearly
alleges that she suffered discrimination in the denial of promotional opportunities and
being paid at a lower rate. Absent, however, in the “Particulars” portion is any alleged
harassment. To allow Plaintiff’s harassment claims to proceed “despite its loose fit with
the administrative charge and investigation … is precluded if it would circumvent …
agency efforts to secure voluntary compliance before a civil action is instituted.”65
Because the facts supporting Plaintiff’s claim for harassment in her Complaint are

61

Id.
Rec. Doc. 20-1, p. 25.
63
448 F.3d at 789.
64
Id.
65
Id.(quoting Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)).
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separate incidents from the incidents of discrimination contained in her Charge,66 the
Court finds it plausible that Plaintiff’s harassment claims “[grew] out of the charge of
discrimination.”67 Accordingly, Defendants’ Motion to Dismiss Plaintiff’s harassment claim
pursuant to FRCP 12(b)(1) is DENIED.
E. Plaintiff’s State Law Claim
Defendants argue that Plaintiff’s Louisiana state law discrimination claim has
prescribed,68 along with her claims for harassment and retaliation because they were
never properly alleged.69 Louisiana Revised Statute 23:303(C) states:
A plaintiff who believes he or she has been discriminated
against, and who intends to pursue court action shall give the
person who has allegedly discriminated written notice of this
fact at least thirty days before initiating court action, shall
detail the alleged discrimination, and both parties shall make
a good faith effort to resolved the dispute prior to initiating
court action.70
Federal district courts in Louisiana “have held [that] the filing of an EEOC charge of
discrimination satisfies the notice requirement [La. R.S. 23:303(c)], but limits the state
claim to the alleged discrimination detailed in the EEOC charge…”71 As previously
discussed, Plaintiff’s EEOC discrimination charge was timely filed and is not time barred.
Defendants further argue that Plaintiff’s state law claims for harassment and retaliation
should be dismissed as they were not contained in the EEOC Charge which satisfies the
notice requirement under La. R.S. 23:303(c). For the reasons discussed above, the Court

66

See Rec Docs. 11, 20-1, p. 25.
Pacheco, 448 F.3d at 789.
68
Rec. Doc. 13-1, p. 12.
69
Rec. Doc. 21, p. 3.
70
La. R.S. 23:303(C).
71
Johnson v. Hospital Corp. of America, 767 F.Supp.2d 678, 700 (W.D. La. Feb. 11, 2011).(See e.g.,
Johnson v. Harrah’s Entertainment, Inc., 2005 WL 3541139, *4 (E.D. La. 2005); Dorgan v. Foster, 2006 WL
2067716, *5, (E.D. La. 2006), citing Dunn v. Nextel So. Corp., 207 F.Supp.2d 523, 524 (M.D. La. 2002).
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67

finds that Plaintiff’s Complaint is limited solely to her discrimination claims. Because
Plaintiff’s Louisiana law claims are based upon her EEOC Charge, Defendants could not
have been given notice relating to her harassment and retaliation as is required under La.
R.S. 303(c), because these claims were not contained in her EEOC complaint.
Plaintiff contends she provided notice to Defendants regarding the retaliation and
harassment claims because she “attempted and participated in conciliation with Plaintiff
at the EEOC, in order to resolve all of her claims.”72 As discussed above in extensio, the
only claim made by Plaintiff in her EEOC Charge was a discrimination claim. While the
Gupta exception applies to save Plaintiff’s Title VII retaliation claim from dismissal, to
maintain a valid retaliation claim under Louisiana law, however, Plaintiff must have
provided Defendants with “separate written notice”73 of her retaliation claim before she
instituted this suit.
The United States District Court for the Western District in Louisiana in Lombardino
v. Brentwood Health Management L.L.C. held:
[the Louisiana Employment Discrimination statute [La. R.S.
23:301 et seq.]] does not expressly provide for a penalty in the
event of noncompliance with its procedural provisions.
Nonetheless, other courts addressing this issue have
determined that a claim under the LEDL must be dismissed if
the plaintiff fails to satisfy the notice requirements, unless she
has filed a charge with the EEOC within the requisite time
period.74

72

Rec. Doc. 24, p. 4.
Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 889 (W.D. La. Sep. 19, 2003).
74
Lombardino v. Brentwood Health Management L.L.C, 15-cv-1358, 2005 WL 2600439 at *2 (W.D. La.
Oct. 13, 2005)(See Dunn v. Nextel South Corp., 207 F.Supp. 2d 523, 524 (M.D. La. 2002); see also Trahan
v. Lowe’s Inc., 2002 WL 1560272 at *5 (E.D. La. 2002)).
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73

Because the Plaintiff’s EEOC charge only contained a claim of discrimination and not
harassment or retaliation, her EEOC Charge could not provide notice to Defendants of
Plaintiff’s state law retaliation and harassment claims. Like the plaintiff in Lombardino,
Plaintiff herein “has failed to provide any additional information which would demonstrate
that she gave written notice to [Defendants] or that she made a good faith effort to resolve
the issues [her harassment and retaliation claims] before initiating suit.”75 With the
absence of information that Plaintiff provided notice of her retaliation and harassment
claims before filing this suit, the Court finds that Plaintiff has failed to satisfy the
requirements of La. R.S. 23:303(C). Plaintiff’s Louisiana state law harassment and
retaliation claims are procedurally time barred and dismissed without prejudice,76 but her
Louisiana state law discrimination claim is not time barred.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s state law discrimination
claim is DENIED and Defendants’ Motion to Dismiss Plaintiff’s state law harassment and
retaliation claims is GRANTED.
F. Plaintiff’s Claim Against the Board of Commissioners
Defendants argues Plaintiff’s claims against the Board of Commissioners (“Board”)
should be dismissed because “nowhere in the Complaint does Plaintiff set forth any
factual allegations that they engaged in any wrongful or unlawful conduct.”77

The

Complaint alleges the “[Board] had ‘absolute control and authority over’ the West
Feliciana Parish Hospital.”78 Viewing Plaintiff’s allegations in the light most favorable to

75

Id. at *3.
The Court need not address Plaintiff’s arguments regarding La. R.S. 23:303(D) as Plaintiff is still required
to provide notice in accordance with La. R.S. 23:303(C) to avail herself of La. R.S. 23:303(D).
77
Rec. Doc. 13-1, p. 14.
78
Rec. Doc. 11, p. 1.
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76

her, Plaintiff’s allegations against the Hospital “can also be construed as allegations
against the [Board].”79
Thus, the motion to dismiss is DENIED as to the Board.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss for Failure to State a

Claim80 is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 22, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

79

Williams v. Hospital Service Dist. of West Feliciana Parish, La., 15-cv-00095, 2015 WL 4656910 at *5
(M.D. La. Aug. 5, 2015).
80
Rec. Doc. 13.
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